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More challenges

At least three more groups that were denied cultivation licenses by the state's Medical Marijuana Commission have filed lawsuits challenging the commission's means of choosing five winners among 95 applicants. The five cultivation permits are already frozen due to an injunction issued in a separate lawsuit by rejected applicant Naturalis Health.

The five members of the Medical Marijuana Commission scored each applicant separately. Heritage Farms, Boll Weevil and Pine Bluff Agriceuticals were scored 14th, 18th and 20th in that order.

The complaints from Heritage Farms and Pine Bluff Agriceuticals piggyback on the existing Naturalis case, in which the plaintiff said the commission's entire scoring process is arbitrary and capricious, and should be tossed out based on alleged conflicts of interest among the commissioners and alleged scoring irregularities. Pulaski County Circuit Judge Wendell Griffen agreed with Naturalis and declared the commission's earlier scores to be null and void. The state attorney general's office — which represents the marijuana commission — is appealing to the Arkansas Supreme Court. The Heritage Farms and Pine Bluff Agriceuticals complaints attach Griffen's ruling as an exhibit and cite few other facts.

Rather than challenging the evaluation process as a whole, Boll Weevil's suit asks the court to order the commission to award Boll Weevil another 22 points, thereby placing it among the top five applicants. The complaint says the commission scored two sections of Boll Weevil's application 21 points lower than Heritage Farms' application that contained identical language.

Boll Weevil and Heritage Farms are not affiliated, but both worked with the same consulting firm to prepare their applications, Couch told the Arkansas Times. Schedules 2 and 3 of both applications outline identical business plans in regard to operations, construction, security and a timeline, Couch said.

However, Heritage Farms received a score on schedules 2 and 3 that was 21 points higher than Boll Weevil's. Most of the discrepancy apparently derives from Commissioner Dr. Carlos Roman's scores, which were 14 points lower for Boll Weevil than Heritage Farms on the identical parts of the applications, according to Couch's complaint. (Neither application was immediately available from the Medical Marijuana Commission for verification.)

Couch said Commissioner Travis Story also erred on Boll Weevil's application by failing to award any points on schedule 3(b), which simply asks whether the applicant has a business plan. An applicant should receive one point even if the plan is deemed "underqualified," Couch said, and the other four commissioners awarded Boll Weevil more than one point on that section. Story, however, assigned Boll Weevil zero points. Couch said he thought that was "just an oversight" on Story's part.

Couch also noted that if the plaintiffs prevail in the Naturalis complaint, his case would be moot. However, "if they don't prevail ... mine should still proceed," he said.

Meanwhile, Roman fired back at critics in interviews with the Democrat-Gazette and Arkansas Business amid allegations of a conflict of interest between Roman and a top-scoring applicant.

Roman took issue with Griffen's decision to nullify the scores, according to the D-G: "It blows my mind that a judge, a lawyer, could put this trash out," he was quoted as saying.

The Naturalis complaint outlines two alleged conflicts of interests. One is between Roman and Dr. Scott Schlesinger, a partial owner of Natural State Medicinals Cultivation, which Roman gave a significantly higher score than any other applicant. Naturalis says Roman, an anesthesiologist and pain-management specialist who runs a large clinic in Little Rock, regularly refers patients to Schlesinger's practice, and that the two men have "an extremely close personal and professional relationship." (The other alleged conflict of interest is between Commissioner Travis Story and Osage Creek Cultivation.)

Roman said the scores were strictly based on merit and that Natural State Medicinals was the standout candidate among the group. He told Field that he didn't know Schlesinger was an applicant when he was grading the cultivation hopefuls.

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The Arkansas Supreme Court last week reversed Pulaski County Circuit Judge Wendell Griffen's March ruling that declared the state's awarding of five marijuana-cultivation permits null and void, saying the circuit court had no subject-matter jurisdiction in the case.

Last week, Pulaski County Circuit Judge Wendell Griffen issued a preliminary injunction to prevent the state Medical Marijuana Commission from awarding five permits to companies to cultivate marijuana in the state.